California Prescriptive Easements

As real property values continue to recover, Californians should be wary of the dangers prescriptive easements pose to their property rights. An easement is a certain narrow right to use the real property of another without owning it. A prescriptive easement is an easement right granted at law when one party (the dominant estate) uses or accesses the property of another (the servient estate) for a specific purpose, for a defined period of time, without consent.

Generally speaking, there are four (4) elements to a prescriptive easement in California:

The use of land must be open and notorious;

Continue and be uninterrupted for a period of at least five (5) years (occasional use could establish the prescriptive use right for the same frequency, e.g., on weekends);

Be adverse; and

Subject to a claim of right (i.e., not consented to).

Pursuant to MacDonald Properties, Inc. v. Bel-Air Country Club, the holder of a servient estate must have actual knowledge of its prescriptive use in order for such use to be open and notorious. 72 Cal.App.3d 693. According to Grant v. Ratliff, 164 Cal. App. 4th 1304, in order for the use to be adverse, it must be hostile. To wit, consent is a complete defense to a prescriptive easement. The five (5) year requirement commences when the dominant estate begins to use the servient estate adversely and without consent.

A prescriptive easement can arise from something as simple as a pedestrian crossing a parking lot of a local business once or twice a week to access an adjacent property. While the activity may seem innocuous, after five (5) continuous years of crossing the parking lot, the pedestrian may successfully argue that it is his or her right to do so. Not only is this reality frustrating, but should the pedestrian formalize the prescriptive easement by filing suit, it can cause complications when the servient property owner decides to sell.

The burden of proof is generally on the party asserting prescriptive rights, which must meet the clear and convincing evidence standard. Connolly v. McDermott. 162 Cal. App. 3d 973. Clear and convincing evidence means that the evidence presented must be highly and substantially more probable to be true than not, resulting in a firm belief or conviction in its factuality.

By their nature, prescriptive easement matters are extremely fact intensive and a case is more easily made with pictures and documentation that illustrate the use and evidence the amount of time that use has persisted. Regardless of whether you are trying to prove or disprove the existence of a prescriptive easement, copious records are crucial.